The Regulated Professions (Health and Social Care) (Amendment) Bill 2019 (“the Bill”) has recently completed Committee stage in Dáil Éireann and is expected to be signed into law by the end of 2019.
The draft legislation has been much-anticipated by regulators who see it as the embodiment of many much needed additional powers to deal with an ever increasing volume of complaints and changes in the regulatory landscape.
Whilst there has been some commentary on what the draft legislation will mean for regulators, there has been little discussion on what the draft legislation will mean for the regulated professionals affected by the draft legislation- doctors; dentists; nurses and midwives; pharmacists and registrants of the Health and Social Care Professionals Council (CORU) alike.
2. Key Amendments
The amendments will focus primarily on the areas of Fitness to Practise and registration issues, including the following key changes:
i. Annual Declarations
The Bill proposes to introduce a requirement that healthcare professionals make an annual declaration providing details of any disciplinary or judicial proceedings and of any sanctions imposed on them in the State or another jurisdiction affecting their ability to provide care.
Although this requirement has been a mainstay of the annual retention of registration process of some professions in recent years e.g. medical practitioners registered with the Medical Council, the development will mark a significant change for others e.g. pharmacists/ CORU registrants where such processes usually take place every three years.
ii. Admissibility of Evidence Relating to Disciplinary/ Judicial Proceedings/ Inquiries in Another Jurisdiction
In addition to the foregoing, the Bill allows for the admissibility of documents relating to any such disciplinary or judicial proceedings in other jurisdictions for the purposes of disciplinary proceedings in the State.
Notwithstanding that the general tenet of requiring information in respect of registration/ practice in other jurisdictions would seem in general terms a sensible one, difficulties are likely to arise where a conviction is ‘spent’ in the jurisdiction it is acquired in but is then required to be disclosed here.
Equally, where a disciplinary sanction or conditions on registration have expired in the jurisdiction of acquisition, it would seem anomalous for those then to be considered in the context of application for registration in Ireland.
Moreover, the anticipated regime would potentially seem to create scenarios whereby information not required to be disclosed on initial application for registration with a particular regulator may now require to be disclosed, in the event that these provisions become law.
iii. Right of Appeal for ‘Minor’ Sanctions/ Confirmation Applications for All Sanctions to the High Court
Significantly, under the Bill, healthcare professionals on whom the less serious sanctions of advice, admonishment or censure (reprimands of varying levels of seriousness) have been imposed will have the right to appeal to the High Court. This is a significant departure from the previous position whereby only the more ‘serious’ sanctions such as conditions, suspension and erasure could be appealed.
Under the new regime, all sanctions imposed will require confirmation and, as such, will be amenable to oversight by the High Court. This is also a significant change from the current position which provides that lesser sanctions do not require confirmation by the High Court.
iv. Full Publication of Sanctions
The Bill provides that all sanctions imposed on healthcare professionals must be published.
Interestingly, the Bill also allows the Fitness to Practise Committee of the Medical Council and the Nursing and Midwifery Board to order that some or all the information regarding a complaint should not be published and makes it an offence to publish any such information in those circumstances.
When recently considered by the Select Committee on Health, these provisions were amended to allow for a provision ensuring that the decision of a Committee/Board would be overruled by a decision of the High Court in this regard.
v. Changes to Screening of Complaints
Under the proposed scheme, the CEO of the Medical Council and the Nursing and Midwifery Board will be empowered to investigate complaints at screening stage, using Authorised Officers.
The CEO of both regulators would also be empowered to decide, at screening stage, whether a complaint is frivolous or vexatious. This decision is currently made by the regulators’ Preliminary Proceedings Committees (“PPC”).
Under the new system, the Authorised Officers will assist the CEO, rather than the PPC in the investigation of complaints. The PPC however will still decide whether there is sufficient cause to warrant further action in respect of a complaint. When making this decision, the Committee will consider and have regard to the Authorised Officer’s investigation report.
Whilst the progression of the draft legislation through the various stages of the legislative process will be keenly followed, the Bill as currently drafted heralds significant change in the area of fitness to practise and registration in particular for practitioners working in this area and the various regulated professionals affected by the proposed changes. Developments will be monitored with interest.
Our Healthcare Regulatory team advise on all aspects of regulatory law, to include responding to regulatory complaints, registration/ recognition issues and Fitness to Practise Inquiries across the various healthcare professions. For further information please contact Lyn McCarthy firstname.lastname@example.org at Hayes solicitors.
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About the Authors
Lyn is an Associate Solicitor in the Healthcare team at Hayes Solicitors. Lyn advises clinical practitioners and indemnity bodies in respect of the defence of medical negligence claims and also in respect of the defence of professional disciplinary matters before Committees of inquiry.
Fergal Mullins is a solicitor on the healthcare team at Hayes Solicitors. He primarily advises clinical practitioners, hospitals and indemnity bodies on the defence of clinical negligence claims. Prior to joining Hayes, Fergal worked in a London firm in the area of clinical negligence, having trained and worked post qualification in a large Dublin firm in the same area.